A cyclist’s crash course in contributory negligence

Dick v Merrick [3.04.24]

This case review was co-authored by Francesca Pozzo, Trainee Solicitor.

The Scottish Court of Session has clarified cyclists cannot assume the highway code applies to public paths. Rather, reasonable behaviour and observation must prevail.


The action arose from a cycling accident which took place on 26 August 2019. The matter came before the court for a four day hearing to determine liability between the parties.

The accident took place at a junction of two converging paths, which both parties were familiar with and had cycled before. The pursuer turned onto the path and collided with the defender.

The pursuer submitted that the highway code applied. He held that the defender had, in an attempt to overtake another cyclist, not completed the manoeuvre and had been on the wrong side of the path when the pursuer exited the junction and joined the main path. The pursuer argued that the defender had breached the highway code.

The defender argued that the pursuer had come out of the junction at speed and in a “split second” leaving no time to react or stop safely. Further, the defender stated that the pursuer was not in control as he was utilising “aerobars” preventing reactive usage of his brakes. In addressing the highway code, the defender asserted that he had right of way, and that the pursuer must give way to the main path when exiting the junction.

The pursuer considered that the majority apportionment of liability lay with the defender, suggesting the figure of 75%. The defender denied liability in full with a secondary position that he would bear a token 10% portion.


Lord Sandison narrowed the issues cleanly in stating that public paths, while available for cyclists to utilise, do not mimic roads in that other users of such walkways cannot be assumed to be observing such rules. They are for all to use in any behaviour they deem appropriate, within reason and without hierarchy.

Both cyclists were found to have been travelling at unsafe, excessive speeds and neither was exercising reasonable care to observe their surroundings – especially a junction of which they had prior knowledge.

The pursuer failed to take reasonable care for his own safety and it was against this background that he was held 50% responsible for his own loss, injury and damage under section 1 of the Law Reform (Contributory Negligence) Act 1945. 


Much focus of each party centred around the mechanics of the accident, to uncover who had been at fault in terms of utilising the path within the remit of the highway code. This was ultimately stripped down to the fact that the pursuer could have easily been “a child running out excitedly from the NCR75 junction”.

The highway code cannot be lifted and laid onto public walkways, and an assumption cannot be made by cyclists that they are entitled to clear passage on their perceived ‘side’ of the path, nor the right of way afforded as if they were travelling on the road.

Cyclists should be alert to hazards and allow time to react to them. Failure to act reasonably by adapting one’s speed to the environment and failing to observe surroundings will likely result in a finding of contributory negligence, as was the case here.